5Exemptions

5 Exemptions

5 Exemptions

(1) Section 4 shall not apply to any worker who is employed by an employer as a member of a class of workers for whom provisions entitling the worker (whether immediately or upon the fulfilment of certain conditions) to leave in the nature of long service leave are made—

(a) by an award or agreement, whether made before or after the commencement of this Act, and such provisions are more favourable to the worker than those of section 4, or

(b) by or under any Act, other than this Act or the Industrial Relations Act 1996.

Where the worker ceases to be a member of a class of workers as aforesaid and at the same time ceases to be in the employment of the worker’s employer the service of the worker as a member of such class shall not be service for the purposes of section 4.

(2)

(a) Subject to section 5A, the Industrial Relations Commission may, subject to such conditions as it thinks fit to impose, exempt any employer from the operation of the provisions of this Act relating to long service leave in respect of any workers in any case where it is satisfied that the workers are entitled to benefits in the nature of long service leave under any scheme conducted by or on behalf of the employer which are not less favourable than those specified in this Act and that it is in the best interests of the workers that the exemption should be granted.

(b) Any exemption granted to an employer in relation to long service leave pursuant to section 88C (4) of the Industrial Arbitration Act 1940 and in force immediately before the commencement of this Act shall be deemed to have been granted pursuant to paragraph (a).

(c)

(i) Any exemption granted pursuant to paragraph (a) shall not apply to an employer in respect of any worker who, within a period of three months after the date from which the exemption takes effect, or the date of commencement of the worker’s employment, as the case may require, has by notice in writing to the employer elected to be subject to the provisions of this Act relating to long service leave in lieu of those provided for in the scheme conducted by or on behalf of the employer.

(ii) Any exemption deemed by paragraph (b) to have been granted pursuant to paragraph (a) shall not apply to an employer in respect of a worker who has before the commencement of this Act by notice in writing given pursuant to section 88C (4A) of the elected to be subject to the provisions of an award or industrial agreement relating to long service leave in lieu of those provided for in the scheme conducted by or on behalf of the worker’s employer or who after such commencement has elected to be subject to the provisions of this Act relating to long service leave in lieu of those provided for in the scheme conducted by or on behalf of the employer within the time within which the worker would have been entitled to make an election had that subsection (4A) not been amended by section 13 (1).